Gregory W. Sproles, Esq.|
Breckenridge, Davis & Sproles, P.L.L.C.
Summersville, West Virginia
Attorney for Appellant
Gary E. Pullin, Esq.|
Mark E. Troy, Esq.
Pullin, Knopf, Fowler & Flanagan
Charleston, West Virginia
Attorneys for Appellee, West Virginia
Division of Environmental Protection
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MCGRAW and JUSTICE STARCHER concur and reserve the right to file concurring opinions.
1. A motion for summary judgment should be granted only when it is
clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syl. pt. 3, Aetna Casualty & Surety Co. v.
Federal Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963).
2. Although our standard of review for summary judgment remains de
novo, a circuit court's order granting summary judgment must set out factual findings
sufficient to permit meaningful appellate review. Findings of fact, by necessity, include
those facts which the circuit court finds relevant, determinative of the issues and undisputed.
Syl. pt. 3, Fayette County Nat. Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997).
3. Where the policy language involved is exclusionary, it will be strictly
construed against the insurer in order that the purpose of providing indemnity not be
defeated. Syl. pt. 5, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va. 734, 356
S.E.2d 488 (1987).
4. An insurance company seeking to avoid liability through the operation of an exclusion has the burden of proving the facts necessary to the operation of that
exclusion. Syl. pt. 7, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987).
Appellant and plaintiff below, John Michael Ayersman, appeals a grant of
summary judgment awarded in favor of appellee and defendant below, the West Virginia
Department of Environmental Protection (the DEP). Mr. Ayersman argues that the lower
court erred when it found that the DEP's insurance policy did not cover the activity alleged
to have damaged appellant's property. We find the lower court's summary judgment order
insufficient to permit meaningful appellate review and reverse on that basis.
Appellant Ayersman is a resident of Fayette County, West Virginia. In 1992,
Mr. Ayersman built a two-bay garage in which he established a small auto-repair business.
The garage is located on Summerlee Road in rural Fayette County, along which flows a
stream known as Wolf Creek. From the record it appears that the creek flows along the road,
but as both approach Mr. Ayersman's property, the creek flows away from the road and
passes behind Mr. Ayersman's garage. Although the creek was there before the construction
of the garage, Mr. Ayersman claims that he experienced no flooding on his land before 1995.
In the spring of 1995, appellee and defendant below, the West Virginia
Department of Environmental Protection, commenced reclamation work at a large coal refuse
pile some distance upstream from Mr. Ayersman's garage. Like many sites in West Virginia,
this abandoned mine site produced water quality problems and safety concerns for area
residents. Specifically, the site contained several settlement ponds containing water and coal
waste, and part of the site had caught fire and burned continuously. Water passing through
the waste pile and its ponds eventually migrated to Wolf Creek, producing silting problems
and a possible increase in the level of iron in the stream.
Under the Abandoned Mine Lands and Reclamation Act, W. Va. Code
§ 22-2-1, et seq., DEP is charged with the duty of reclaiming abandoned mine sites in West
Virginia. DEP contracted with G.A.I. Consultants to design a project whereby workers
would grade and revegetate the site, remove the existing settling ponds, and divert water
around, rather than through, the refuse pile. DEP chose Perland Construction to do the
After a rain on June 14, 1995, the creek next to Mr. Ayersman's property
flooded extensively, overflowing its banks and inundating the garage. Since that time, the
creek has flooded repeatedly. Despite Mr. Ayersman's efforts to divert some of the water
with culverts or berms, the water has flooded the shop on several subsequent occasions. This
flooding has caused Mr. Ayersman considerable damage in destroyed property and lost
business. As a result, Mr. Ayersman sued the DEP, the design consultant and the engineering
firm on January 17, 1997.
DEP argued that, because its insurance policy contained an exclusion for
pollution clean upSee footnote 1
work, that there was no coverage for the damages to Mr. Ayersman.
DEP claims that, because our law allows a suit against a state entity like DEP only if
insurance coverage exists, DEP was, therefore, immune from suit. The lower court agreed
with this argument and granted summary judgment against Mr. Ayersman and in favor of
DEP. Mr. Ayersman now appeals.
2) To any loss, cost or expense arising out of any governmental
direction or request that the Named Insured test for, monitor,
clean up, remove, contain, treat, detoxify or neutralize
Pollutants means any solid, liquid, gaseous or thermal irritant or
contaminant, including smoke, vapor, soot, fumes, acids, alkalis,
chemicals and waste. Waste includes materials to be recycled,
reconditioned or reclaimed.
DEP claims, because it was clean[ing] up what were pollutants at the mine site, that even
if this activity caused the flooding, DEP is immune from suit because no insurance policy
covered its actions. Mr. Ayersman argues that DEP, as a government entity, was not acting
under governmental direction or request, and that the coal refuse and settlement ponds
were not pollution in the usual sense of the word.See footnote 2
Because we find that the lower court's
order failed to meet the test we have established for summary judgment orders, we need not
wrestle with any policy definitions to decide this matter.
We have held that a summary judgment order must set forth findings
substantial enough to allow this Court to make an informed judgment on the propriety of the
lower court's actions. [O]n summary judgment, a circuit court must make factual findings
sufficient to permit meaningful appellate review. Gentry v. Mangum, 195 W. Va. 512, 521,
466 S.E.2d 171, 180 (1995). We have explained that a conclusory order simply stating that
no issue of material fact is in dispute will not suffice. For meaningful appellate review,
more must be included in an order granting summary judgment. This Court's function, as
a reviewing court is to determine whether the stated reasons for the granting of summary
judgment by the lower court are supported by the record. Fayette County Nat. Bank v. Lilly,
199 W. Va. 349, 353, 484 S.E.2d 232, 236 (1997).
We went on to establish a new syllabus point in Lilly describing what is
required in an order granting summary judgment:
Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.
Syl. pt. 3, Fayette County Nat. Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997).
In the case sub judice, the lower court discussed the DEP's alleged immunity,
but did not provide the factual basis for its decision:
It appears that Defendant, DEP, having duly raised governmental immunity, is entitled to be dismissed from this action. The State of West Virginia's insurance policy specifically excludes coverage for actions in the clean-up of pollutants, as occurred here, and under Pittsburgh Elevator v. W. Va. Board of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983), in order to escape the constitutional bar to suits against the State, insurance proceeds must be sought. As is recognized [by the] parties, DEP is considered the State under the immunity analysis, and consequently, the DEP is immune because of the lack of insurance coverage, unless it has created a special relationship with the Plaintiff under the public duty doctrine.
The order then goes on to discuss the public duty doctrine in greater detail.See footnote 3 3 What the court does not reveal is what findings, if any, it made with regard to the facts at issue. That is, presuming that the court has made a threshold determination that the exclusion could apply to abandoned mine reclamation activity,See footnote 4 4 the court did not make findings on whether or not the DEP was directed by governmental direction or request or whether or not the work performed on the mine site constituted pollution abatement as defined in the policy.See footnote 5 5
We hold, therefore, that the circuit court committed reversible error by granting
summary judgment without including sufficient findings of fact and conclusions of law in
its final order. For the reasons stated, the judgment of the Circuit Court of Kanawha County
is reversed and remanded for further proceedings consistent with this opinion.
Footnote: 1 1We quote the policy language in our discussion, infra.
Footnote: 2 2We note that the reclamation of abandoned mine sites is a primary function of DEP.
[I]t is the intent of the Legislature by this article to vest
jurisdiction and authority in the director of the division of
environmental protection to maintain program approval by, and
receipt of funds from, the United States department of the
interior to accomplish the desired restoration and reclamation of
our land and water resources.
W. Va. Code § 22-2-2 (1994). Thus, DEP is in the unique position that it is charged with
the restoration of sites left abandoned by others; DEP does not operate plants, factories, or
mines of its own that might result in a governmental direction or request . . . to clean up .
. . pollutants. To the contrary, DEP actually is a government entity that directs or requests
others to clean up pollutants.
Thus, the exclusion at issue seems particularly ill-suited for a policy written for the DEP. While we do find it necessary to make a detailed analysis of the policy to resolve this appeal, we are skeptical of any policy language that purports to exclude a primary function of the insured.
Footnote: 3 3While we feel that the facts of this case do not implicate the so-called public duty doctrine, we need not address what impact the court's application of this doctrine might have on the case's outcome, as we are reversing on other grounds.
Footnote: 4 4Nor did the court address the potential ambiguity created by the confusing governmental request language contained in a policy that was issued to a governmental entity.
5Nor does the court's order address the fact that, as a matter of law, the DEP (or its
insurance company) bears the burden of showing that the activity is actually excluded by the
Where the policy language involved is exclusionary, it will be
strictly construed against the insurer in order that the purpose of
providing indemnity not be defeated.
An insurance company seeking to avoid liability through the
operation of an exclusion has the burden of proving the facts
necessary to the operation of that exclusion.
Syl. pts. 5, 7, National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987).